Morton v. Bartning

Belcher, C. C. — This is an appeal by the plaintiff from an order granting the defendant a new trial.

The action was commenced to recover a balance due plaintiff for services rendered as physician and surgeon to the officers and employees of the Hormiguera Mining Company, a corporation, and which, as alleged in the [307]original complaint, the defendant, on or about the fifteenth day of October, 1878, for value received, agreed and promised in writing to pay.

The defendant, by his answer, denied that he ever agreed or promised in writing, or in any other manner, to pay the plaintiff’s claim, or any part thereof.

On-the first day of the trial, and after the plaintiff had been upon the stand as a witness Tor some time, plaintiff’s counsel asked and obtained leave, against the objections of defendant, to amend the complaint, by inserting, “ and that, by reason of a further promise by the defendant, verbally to the plaintiff, to answer for the said debt of said company to him, the plaintiff canceled the debt of said company to him, and accepted the defendant’s promise as a substitute therefor.”

At the opening of court on the second day of the trial, counsel for defendant asked leave to amend the answer by adding, “and for a further and separate answer to plaintiff’s complaint the defendant alleges that the plaintiff’s cause of action is barred by subdivision 1 of section 339 of the Code of Civil Procedure.”

Without objection on the part of the plaintiff, the court refused to allow the amendment, on the ground that it came too late; and the defendant reserved an exception.

At the conclusion of the trial the court found, among other things, " that there was a written agreement on the part of the defendant to pay the debts of the Hormiguera Mining Company, and that in this written agreement there was a promise to pay said debt owing by said company to plaintiff; that defendant verbally promised plaintiff to pay said debt of said company to him, and in consideration thereof the plaintiff canceled the said debt of the said company to him; that said verbal promise was made upon consideration that the plaintiff should cancel said debt of the company, and that thereupon plaintiff did cancel said obligation of the company [308]